By the Court.
McDonald J.delivering the opinion.
This was an action of ejectment, in the Superior Court of Cass county. The jury rendered a verdict for the plaintiff, and the defendant moved for a new trial on the several grounds set forth in the foregoing statement, by the Reporter. The presiding Judge refused to grant a new trial, and error is assigned on his judgment refusing it. According to the record before us, the defendant entered into possession of the premises sued for under the lessor of the plaintiff, Jesse Cash, either undera verbal donation or of a promise to give the land to the defendant, or to his wife,orto his wife and «children, or under a lease, he to pay rent in corn or cotton. There is some evidence to each of these points, but the weight of the evidence is, that he entered into possession of the land under a verbal promise, that as soon as certain impediments were removed, he would execute a title to the defendant’s wife and children. If the defendant entered under the lessor of the plaintiff, whether by purchase, gift, lease, or otherwise, he cannot dispute his title. Leigh’s Nisi Prius, and cases referred to in the note 925. So far, then, as the plaintiff’s right to recover the premises in dispute, (h'peuded ou the evidence adduced by him, it was perfect as to the defendant.
[2.] The defence of adverse possession for a period that would bar the plaintiff’s right of action, was set up. This defence was inconsistent with a tenancy at will, and it was not necessary for the plaintiff to prove notice before he brought the suit, that he had determined his will.
The case of the plaintiff in error, then, depends on the *513merits of his defence under the statute of limitations, and those merits may he fully examined on the errors assigned, upon the refusal of the Court below to charge the jury as requested by the counsel for the plaintiff in error, and upen the charge of the Comt, as given to the jury.
[3.] The counsel for the plaintiff in error requested the Judge presiding at the trial, to charge the jury, that if the defendant (plaintiff in error) went into possession of the land as his own, with the understanding that the lessor of the plaintiff should execute to defendant’s wife a conveyance, that does not. con titute him tenant at will of the plaintiff, and does not prevent the statute of limitations from running.
It is by no means clear, that the evidence in the cause warrants the charge; but the request is inconsistent with, itself, for the defendant could not enter into possession of the laud as his own, while he acknowledged the title out of him by stipulating that a conveyance should be executed to his wife by the person claiming title. But the request is substantially wrong, and ought not to have been given in. charge to the jury, for “a party who has been let into the possession of land under a contract of sale, or for a letting which has not been completed, is a tenant at will of the vendor.”' Ball vs. Cullimore, Withers et al, 2 Mason, Cr. Bos. Excheq'r Rep. 133. Dunb. vs. Hunter 7 Com. L. Rep. 115. The request implies, that the title to the land was in the lessor of the plaintiff, and that a conveyance was necessary to pass it out of him. If the defendant entered under a contract of any sort for a title, the statute of limitations could not begin to run in his favor until he repudiated the contract, and claimed to hold in defiance of plaintiff’s title, and the plaintiff’s knowledge of such adverse holding.
j he Court charged die jury, that if the defendant, previous to the year 1853, took possession of the land, claiming it as his own, and kept that possession, and continued that claim for seven years, ihe defendant acquired a good statuto*514ry title, and the jury ought to find for the defendant. This charge is certainly as favorable to the defendant below, under the evidence in the record, as he could have asked. But the Court proceeded to charge the jury further, that if the defendant took possession of the land under a promise from the plaintiff to execute a conveyance to the defendant’s wife and children, the statute would not run until the plaintiff had notice that the defendant claimed the land in hostility to the plaintiff, and this charge is also assigned as error. ¥e are in a Court of law, and the cause must be decided -on legal principles. We express no opinion upon the right of the defendant below, and his wife, if he can establish satisfactorily, a contract of the sort alluded to in this charge, and that he entered, and made the improvements under that contract, which are testified to by some witnesses, as stated in the record, to have said contract executed. But the contract, as here stated, a promise to execute a conveyance to the defendant’s wife and children, admits the legal title to the land to be in the lessor of the plaintiff, and if the defendant took possession of the land under such promise, he recognized the title under which he entered, and the statute cannot run in his favor until he gets clear of the force and effect of that recognition, by assuming an adversary position to it, with notice to the party under whom he entered. We think, therefore, that in no aspect in which we have been able to view this case, under the proofs before us, can the plaintiff maintain either a title or possession, under the statute of limitations.
Judgment affirmed.